Office of the Vice-President, Institutional Relations and Secretary …€¦ · Mr. Mohammad Reza Karim Hadisi, representing graduate students . Ms. Linda Hull, Manager, Course Registration,

Office of the Vice-President, Institutional Relations and Secretary-General Vice-rectorat Relations institutionnelles et Secrétariat général Decision of the Board of Governors Meeting date: June 21, 2012 Subject: Report and recommendations from the Ombuds Appraisal Committee regarding the

Ombuds Office To: Bram Freedman, Vice-President, Institutional Relations and Secretary-General

Kristen Robillard, Ombudsperson Resolution: That, on recommendation of the Ombuds Appraisal Committee, the recommendations in

connection to the Ombuds Office, detailed in Document BG-2012-8-D37, be approved. Enclosure: Document BG-2012-8-D37 Certified to be a true copy

_____________________________________ Danielle Tessier Secretary of the Board of Governors June 27, 2012

Report and Recommendations of the Appraisal Committee of the Ombuds Office

Concerning the Ombuds Office

January 25, 2012

looTypewritten Text

looTypewritten TextBG-2012-8-D37

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Context

The review and appraisal of the Ombudsperson and the Ombuds Office are provided

for in section 28 of the Terms of Reference of the Ombuds Office (Policy BD-2) which states:

28. The appointment shall be made for an initial term of two years, renewable for further

terms of five years. During the fourth year of each such term, the Board shall appoint an

appraisal committee, chaired by the Vice-President, Institutional Relations and

Secretary-General, and composed of representatives of the University constituencies,

including at least one (1) undergraduate and (1) graduate student which shall:

a. review the operations of the Office;

b. make recommendations with respect to the Office;

c. make a recommendation with respect to the renewal of the Ombudsperson.

This review shall include, but shall not be limited to, consultations with the University

community as well as an external appraisal.

The Process

At its meeting of September 28, 2011, the Board of Governors established an Appraisal

Committee with the following membership:

Me Bram Freedman, Chair, VP, Institutional Relations & Secretary-General

Dr. Catherine Bolton, Associate Dean, Faculty of Arts and Science

Prof. Maria Peluso, President, CUPFA

Ms. Brigitte St-Laurent, Director, Advocacy & Support Services

Dr. Chris Trueman, Associate Dean, Faculty of Engineering and Computer Science

Ms. Lisa White, representing undergraduate students

Mr. Mohammad Reza Karim Hadisi, representing graduate students

Ms. Linda Hull, Manager, Course Registration, Examinations & Academic Scheduling

Dr. Cameron Skinner, Associate Dean, School of Graduate Studies

The Appraisal Committee met 5 times between October 2011 and January 2012. The tools

used and materials considered by the Appraisal Committee included:

The Terms of Reference of the Ombuds Office (Appendix A)

a 2005 Self-Evaluation performed by the Ombudsperson

the 2009/2010 Annual Report of the Ombudsperson

a 2011 Self-Evaluation requested by the Appraisal Committee

http://www.concordia.ca/vpirsg/documents/policies/BD-2.pdf

3

various e-mail exchanges between the Ombudsperson and the Office of VP

Freedman, on the subject of complaints received by VP Freedman

an interview with the incumbent

a survey of former clients (see Appendix B). In the course of his work, the external

appraiser conducted telephone interviews with 9 former clients who had completed

the survey

a survey of service departments within the University (see Appendix C)

a survey of the Board of Governors (see Appendix D)

two reports submitted by the external appraisal – one considering the renewal of the

incumbent which forms the basis of a separate report and another concerning the

operations of the Office (see Appendix E)

Recommendation concerning the Ombuds Office

Following careful consideration of all of the materials reviewed, and, in particular, the

recommendations of the external appraiser, the Appraisal Committee recommends the

following:

Recommendation #1: That the VP’s organizational chart be amended to place the

Ombuds alone on a slightly higher plane, joined via broken line to the VP’s

downline, and remaining joined to the Board of Governors. (This recommendation

has already been implemented).

Recommendation #2: That the VP’s webpage http://www.concordia.ca/vpirsg/ be

amended to reflect the Terms of Reference so that it indicates the VP is “responsible

for…acting as the link between the Board and Ombudsperson for administrative

purposes.” (This recommendation has already been implemented).

Recommendation #3: The Ombuds Office website should have links placed to its

previous Annual Reports and any other publications that it has produced. As well,

University Communications Services should be asked to review the website so as to

enhance its user-friendliness and functionality.

Recommendation #4: The Ombuds Office should be granted additional human

resources below that of the Assistant Ombuds. Given the close working relationship

between the Ombuds Office and the Office of Rights and Responsibilities as well as

the difference in the current staffing complement of the two offices (2.5 for the

Ombuds Office vs. 1.5 for the Office of Rights and Responsibilities), consideration

should be given to the sharing of a new human resource. The new human resource

should have functions that would better allow for the fulfillment of all of the

http://www.concordia.ca/vpirsg/

4

obligations provided for in the Terms of Reference. The successful candidate should

be bilingual and hold at a minimum, a Bachelor’s degree. The VPIRSG should be

tasked with overseeing this recommendation in consultation with the

Ombudsperson and Advisor on Rights and Responsibilities.

Recommendation #5: In future reviews of the Terms of Reference, a clause should be

considered dedicated to protecting the Ombuds from appearing as a witness in

Concordia tribunals, and endeavouring to protect the Ombuds from subpoena

attempts from inside and outside of Concordia. This is a complex issue that would

require in-depth study and analysis during the next review of the Terms of

Reference.

Recommendation #6: Future reviews of the Terms of Reference should include

consideration of Terms of Removal with a “removal for cause” provision in the

Appointment section of the Terms.

Recommendation #7: The Ombuds Office complaint form should be amended:

to ask complainants which person, office, process or policy is being

complained about

to ask complainants how the complaint can be settled

to implement the wording concerning confidentiality and legal actions, agreed

to with the Office of the General Counsel in 2010-2011

More generally, the Ombudsperson should conduct a complete review of the

complaint form to ensure that it allows for useful data collection.

Recommendation #8: Upon assuming new office space (forecasted for 2013), the

Ombuds Office should commission, with Concordia’s support, a review of protection

of privacy and physical and electronic storage methodologies by a specialist in this

area.

Recommendation #9: The recommendations of the security audit recently performed

on the Ombuds Office be given priority consideration by Concordia.

Recommendation #10: The Vice-President, Institutional Relations and Secretary-

General be tasked with reporting to the Board of Governors in September 2015 as to

the progress made with respect to the recommendations outlined in this Report.

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Recommendation #11: The Ombuds Office should be approved for the purchase of

one laptop computer and a secure USB Flash Drive to assist operations. If followed,

appropriate security and data-protection software and training must be provided.

Appendix A

Terms of Reference of the Ombuds Office

TERMS OF REFERENCE OF THE OMBUDS OFFICE

Effective Date: June 17, 2010 Originating Office: Board of Governors

Supersedes /Amends: BD-2/December 14, 1998 Policy Number: BD-2

SCOPE

1. The Ombuds Office shall be independent of all existing administrative structures of the

University.

2. For the purposes of these Terms of Reference:

“Member” means faculty members, employees, administrative and support staff,

postdoctoral fellows, members of the administration, students, student applicants,

interns, academic visitors, stagiaires or researchers including but not limited to exchange

students and visiting students.

3. The Ombudsperson shall provide an impartial and confidential service to Members who

have been unable to resolve their concerns about the application of any policy, rule or

procedure.

4. The Ombudsperson may not inquire into the application or interpretation of a collective

or employee agreement nor into the alleged violation of the duty of fair representation

against a certified union.

5. The Ombudsperson shall have no actual authority to impose remedies or sanctions, or to

enforce any policy, rule or procedure. However, he/she may make any

recommendations that he/she deems appropriate with regard to resolving complaints or

improving policies, rules or procedures.

Functions of the Ombuds Office

6. Specifically, the Ombudsperson shall:

a. actively promote these Terms of Reference and the services offered;

b. inform Members about existing policies, rules and procedures and advise them

as to the appropriate channel of redress for any concern or complaint they may

have;


Page 2 of 6

c. assist Members to resolve complaints informally and quickly;

d. at his/her discretion, conduct an independent and objective inquiry into

complaints when normal channels of recourse have been exhausted;

e. at his/her discretion, conduct an independent and objective inquiry into the

application of any policy, rule or procedure of the University;

f. explain decisions taken by University authorities when complaints are not

substantiated;

g. at his/her discretion, recommend solutions to help resolve complaints;

h. bring to the attention of University authorities any policies, rules or procedures

which appear unclear or inequitable or which might jeopardize the rights or

freedoms of any Member . The Ombudsperson may suggest changes to the

existing policies, rules or procedures or offer advice on the development of new

policies, rules or procedures.

Special Concerns of the Ombuds Office

7. In dealing with complaints , the Ombudsperson shall be concerned that all Members are

dealt with and deal with others fairly and more specifically that:

a. decisions affecting Members are made with reasonable promptness;

b. procedures used to reach decisions are adequate and the criteria and rules upon

which such decisions are based are appropriate;

c. procedures and criteria used in making decisions are clearly communicated to

those affected.

Complaints

8. In dealing with complaints, the Ombudsperson shall act in an impartial fashion, acting

neither as an advocate for the Member making a complaint (“the Applicant”) nor as a

defender of the University but rather he/she shall seek to promote procedural fairness

and a reasonable outcome. In so doing, he/she shall endeavor to maintain harmonious

relations with all Members using tact, diplomacy and sensitivity.


Page 3 of 6

9. The Ombudsperson shall have prompt access to such University records, reports or

documents as are required to fulfill his/her functions. Requests for such access shall

receive priority from all Members.

10. A complaint should be brought to the attention of the Ombudsperson within six (6)

months of the Applicant becoming aware of the situation giving rise to the complaint.

This period may be extended at the discretion of the Ombudsperson.

11. If the Ombudsperson decides to inquire into a matter, he/she shall make every effort to

consult the relevant parties and give such parties the opportunity to reply, should they

so wish.

12. Upon the conclusion of an inquiry, the Ombudsperson shall advise all parties to a

complaint of his/her findings and any recommendations that he/she has formulated.

13. In addition, the Ombudsperson may bring his/her findings to the attention of the

University authorities and make whatever recommendations he/she deems appropriate

and to whomever within the University he/she feels should receive them. Such

recommendations may bear either on the actions or decision of an individual or a group,

or on the policies, rules and procedures which gave rise to them. If, upon receipt of such

findings or recommendations, a University authority proceeds to disciplinary action in

order to resolve the matter, the procedure of any relevant University policy, collective or

employee agreement shall be followed.

14. The Ombudsperson may refuse to take up any case where he/she judges his/her

intervention would be inappropriate and may withdraw from a case if continued

involvement is ill-advised. In such cases, the Ombudsperson shall inform the Applicant

as to the appropriate channel of redress, if applicable.

15. If the Ombudsperson refuses to take up a case or withdraws from a case, he/she shall,

upon request, provide the Applicant with a written statement of the reason.

16. The Ombudsperson shall not inquire into any matter that is before a court of law or is

pending at or before any administrative tribunal outside the University. In addition,

upon being informed that a legal claim or that a notice of a potential legal claim has been

received by the University, the Ombudsperson shall immediately withdraw from a case

and shall cease any communication with the Applicant.


Page 4 of 6

17. Under no circumstances shall the mere fact of bringing a complaint to the attention of

the Ombudsperson constitute a formal notification, for legal purposes, to the University.

18. The Ombudsperson shall avoid involvement in cases where there may be a conflict of

interest.

Confidentiality and Protection from Reprisals

19. Should the pursuit of any inquiry necessitate the disclosure of details that identify an

Applicant, the Applicant shall be informed. Any disclosure shall be limited to those

who have a need to know.

20. Should an Applicant decide to withdraw an application in order to protect his/her

anonymity, the Ombudsperson shall respect this decision.

21. The Ombudsperson shall respect the confidentiality of any confidential information or

materials to which he/she has access.

22. Should the Ombudsperson consider that the response to his/her recommendation has

been unsatisfactory, he/she shall be entitled to make the recommendation public,

provided always that, subject to Article 19, the confidentiality of the Applicant is

respected.

23. Notwithstanding articles 19-22, confidentiality rights are subject to disclosure required

by law and specifically situations outlined in the Policy on the Emergency Release of

Personal Information (VPIRSG-5).

24. No Member who seeks the services of, files a complaint with, or cooperates in any

manner with the Ombudsperson, shall be subject to any reprisals for so doing. The

procedure set out in the relevant University policy or collective or employee agreement

shall be followed in cases of alleged reprisals.

Files

25. The Ombudsperson shall maintain suitable records of complaints, findings and

recommendations which shall be accessible only to the staff of the Ombuds Office or as

required by law. Such files shall be destroyed according to a retention schedule

determined in accordance with provincial legislation.

http://www.concordia.ca/vpirsg/documents/policies/VPIRSG-5.pdf


Page 5 of 6

Appointment of Ombudsperson

26. The Ombudsperson shall be appointed by the Board of Governors (“the Board”) upon

the recommendation of a representative advisory committee struck for this purpose by

the Board. The Committee shall be composed of representatives of the University

constituencies, including at least one (1) undergraduate and one (1) graduate student

and shall be chaired by Vice-President, Institutional Relations and Secretary-General.

27. The Vice-President, Institutional Relations and Secretary-General shall act as the link

between the Board and the Ombudsperson for administrative purposes.

28. The appointment shall be made for an initial term of two years, renewable for further

terms of five years. During the fourth year of each such term, the Board shall appoint an

appraisal committee, chaired by the Vice-President, Institutional Relations and

Secretary-General, and composed of representatives of the University constituencies,

including at least one (1) undergraduate and one (1) graduate student which shall:

a. review the operations of the Office;

b. make recommendations with respect to the Office;

c. make a recommendation with respect to the renewal of the Ombudsperson.

This review shall include, but shall not be limited to, consultations with the University

community as well as an external appraisal.

29. The Ombudsperson shall submit an annual report to the Board by November 1st of each

year covering the previous academic year. The report shall detail activities of the

Ombuds Office, including statistics on the concerns and complaints received, and shall

make recommendations, as necessary. The Vice-President, Institutional Relations and

Secretary-General shall ensure that the appropriate University authorities consider and

respond to the recommendations contained in the report.

30. The annual report shall be published in the University's newspaper and submitted, for

information purposes, to the Senate.


Page 6 of 6

Complaints Relating to the Operations of the Ombuds Office

31. If a Member considers that the Ombudsperson has committed a procedural or

substantive violation of these Terms of Reference, with respect to any matter to which

the Member has been a party, he/she may submit a written complaint, detailing the

alleged violation, to the Vice-President, Institutional Relations and Secretary-General.

The Vice-President, Institutional Relations and Secretary-General shall investigate the

complaint and inform the Member of the results of the investigation.

32. If the Member is not satisfied with the response of the Vice-President, Institutional

Relations and Secretary-General, he/she may request, in writing, within fifteen (15)

working days of receiving the response, that the Appeals Committee of the Board

review the complaint against the Ombudsperson.

lhubertTypewritten Text







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Appendix E

External Appraisal of the Ombuds Office

An Appraisal of the Ombuds Office

Submitted to the Advisory Committee to the Board of Governors of:

Bradley Moss External Appraiser

St. John’s, NL

January 3, 2012

2

TABLE OF CONTENTS Background ..................................................................................................................... 3

Areas of Focus/Enquiry for the Appraisal ........................................................................ 3

The Foundation for this Appraisal ................................................................................... 4

The Ombudsman Concept ............................................................................................... 5

The Ombuds in Post-Secondary Institutions .................................................................... 5

Effectiveness in the Ombudsman Context........................................................................ 7

The American Bar Association Standards ........................................................................ 9

Appraisal: The Concordia Ombuds Office .................................................................... 10

Area 1: Use of Technology and Tools by the Ombuds Office ........................................ 10

Area 2: Data Management ............................................................................................. 14

Area 3: Promotional Materials ....................................................................................... 16

Area 4: Publications and Reports ................................................................................... 17

Area 6: Office Human Resources .................................................................................. 21

Area 7: The Terms of Reference .................................................................................... 22

Varia ............................................................................................................................. 26

What I Heard: Verbatim Comments About the Ombuds Office ..................................... 27

Conclusion .................................................................................................................... 28

Recommendations ......................................................................................................... 29

BIBLIOGRAPHY ......................................................................................................... 30

3

Background This writer was contacted by Concordia University (hereinafter “Concordia”) in November of 2011 to serve as an external appraiser in its mandated review of the Ombuds Office. An appraisal committee, and the requirement of an additional (external) appraisal, is anticipated in Paragraphs 28(a) and (b) of the Terms of Reference of the Ombuds Office which state:

28. The appointment shall be made for an initial term of two years, renewable for further terms of five years. During the fourth year of each such term, the Board shall appoint an appraisal committee, chaired by the Vice-President, Institutional Relations and Secretary-General, and composed of representatives of the University constituencies, including at least one (1) undergraduate and (1) graduate student which shall: a. review the operations of the Office; b. make recommendations with respect to the Office; c. make a recommendation with respect to the renewal of the Ombudsperson.

This review shall include, but shall not be limited to, consultations with the University community as well as an external appraisal.

(Emphasis mine)

Areas of Focus/Enquiry for the Appraisal The following areas of focus and/or enquiry requested by Concordia were outlined in a Memorandum dated November 20, 2011 from the Vice President, Institutional Relations and Secretary-General (“VP”).

1. Use of technology and tools by the Ombuds Office; 2. Data management

3. Promotional materials

4. Publications, Reports (or lack thereof)

5. Complaint treatment process and delays

6. The structure of the office in terms of human resources

4

In a subsequent consultation with the VP on November 23 2011, the following additional area of focus was requested:

7. Is the current structure of the Terms of Reference in keeping with Terms of Reference found in other Canadian Universities?

The Foundation for this Appraisal This external appraisal is based on:

(a) The review of 228 pages of material provided by the Office of the VP including, but not limited to:

(i) The Terms of Reference for the Ombuds;

(ii) a 2005 Self-Evaluation performed by the Ombuds;

(iii) the 2009/2010 Annual Report of the Ombuds;

(iv) a 2011 Self-Evaluation performed by the Ombuds;

(v) various e-mail exchanges between the Ombuds and the Office of the VP, on the subject of two complaints received by the VP and,

(vi) the results of an internet survey of users, conducted during the fall

of 2011 on the subject of the Ombuds Office.

(b) A meeting with the Advisory Committee on November 30, 2011 at Concordia.

(c) A series of meetings conducted with seven other interested parties,

including the Ombuds and Assistant Ombuds on November 30 and December 1, 2011 at Concordia.

(d) Research and conventional wisdom in the field of Ombuds practice.

(e) A site visit to the Ombuds Office on November 30, 2011.

(f) Telephone contact with nine internet survey respondents1 who volunteered

to participate in this appraisal.

1 The nine survey respondents were a mix of university employees and former student clients of the Office. Detailed messages were left for seven other respondents, offering a toll-free number. There were no replies.

5

(g) Reviews of eight other Terms of Reference documents for Canadian University Ombuds, located in the public domain.

The Ombudsman Concept With origins in Sweden, the modern Ombudsman2 concept has spread around the world since 1809. Ombudsman offices now operate at the supra-national, national, state, regional, provincial and municipal levels, with creative adaptations of the original “classical” concept proliferating into the academic and corporate spheres. While there are some hybrid-mandate offices3 the central function of the North American Ombudsman is to receive and investigate complaints, and make recommendations regarding matters of administration where appropriate. Regardless of whether the Ombudsman is a creature of statute or administrative fiat, by convention the concept in Canada has expanded to include roles as facilitator of informal conflict resolution, provider of referral services, advocate for fairness principles and self-help advisor.

The Ombuds in Post-Secondary Institutions The passage of state and provincial Ombudsman legislation in the 1960s and 1970s paved the way for the concept to enter academia. At a time when Universities were particularly rife with student unrest, demonstration and angst, Universities came to recognize the Ombudsman as a potential vehicle to resolve disputes at the lowest possible level. In 1969 the Wall Street Journal noted substantial growth in the number of University Ombuds in the United States as a method of “attacking student rebellion at its root.” The article quoted the Michigan State Ombudsman as saying:

I try to help the student who has been caught in the machinery of the university and snatch him before he becomes completely mangled…acting as broker between students and administrators in efforts to bring about all sort of changes, from elimination of rules students consider archaic to demands for better treatment for minority groups.4

2 The word, derived from the Swedish “Justitieombudsman” is gender neutral. The plural form of “Ombudsman” in English is an unsettled matter. Often the singular is used to describe the plural. The words “Ombudsman” and “Ombuds” are used interchangeably in this appraisal, and “Ombudsman” may describe the plural. 3 The role is sometimes paired with child advocacy (N.B.), information and privacy (MB, YK). 4 Art Glickman. “Campus Ombudsmen helps Students Fight Against Bureaucracy.” The Wall Street Journal, November 11, 1969.

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McKee & Belson (the latter a long-serving Concordia Ombuds) confirm student activism as a major contributing factor to the creation of campus Ombuds in Canada. They point out that in the case of forerunner institution Sir George Williams University, the Ombuds Office was actually established in the aftermath of campus violence.5 They cite the introduction of human rights and consumer legislation as factors which:

…influenced students to reject paternalism and begin to think of their relationship with universities in terms of contract. As students increasingly view themselves as consumers of educational services, their demands for fair treatment have become difficult for universities to ignore. This combination of factors has placed increasing demands on universities to adhere to the principles of natural justice and procedural fairness in resolving grievances and hearing appeals. (McKee & Stephenson, 1988).6

Concordia opened the present Ombuds Office in 1978, merging the Ombuds Offices of Loyola College and Sir George Williams University7. Worthy of note is that Concordia hosted the first meeting of what would become the Association of Canadian College and University Ombudspersons (ACCUO) in November of 1979. Today, ACCUO is an umbrella group that, inter alia, shares best practices, sponsors research, and provides networking opportunities to nearly 50 University and College Ombuds across Canada. 8 The Concordia Ombuds is currently the President of this organization. Unlike organized labour, faculty associations and student groups, the academic Ombuds is designed to serve all constituencies of the University. According to Stuhmcke (2001) the University Ombuds logically owes allegiance to no particular segment of the institution but rather the entire university community. “The (Ombuds) does not replace but rather supplements the traditional roles of resolving differences between administrators and students.”9 Stuhmcke extols the benefits of the University Ombuds model as follows:

1. The offices work quickly in comparison with other University review bodies. 2. The offices are informal and therefore more accessible to complainants.

3. The offices are cheap and effective for both complainant and decision makers.

5 Christine McKee and Suzanne Belson. “The Ombudsman in Canadian Universities: And Justice For All.” Studies in Higher Education, Vol. 15, No. 2. p. 198. 6 Ibid, p. 198. 7 The forerunner offices opened in 1971. 8 Source: Association of Canadian College and University Ombudspersons. http://www.uwo.ca/ombuds/accuo_aoucc/english/index.html 9 Anita Stuhmcke. “Grievance Handling in Australian Universities: the case of the university ombudsman and the dean of students.” Journal of Higher Education Policy and Management, Vol. 23, No. 2. p. 182.

http://www.uwo.ca/ombuds/accuo_aoucc/english/index.html

7

4. The offices are non-threatening to decision makers or at least not as

threatening as other review mechanisms and the courts.10

Effectiveness in the Ombudsman Context Point 3 above refers to the word “effective,” which is a frequently employed term when weighing the value of an Ombuds office. In the academic context, one could say that without an “effective” University Ombuds, students and faculty do not receive the full benefit of a service provided for their protection. For these constituencies, the effective Ombuds can provide an avenue of justice, especially for students with no knowledge of administrative procedures. Also, there are bound to be cases where the cause of fairness may get lost in a web of complicated regulations interpreted too literally by officials who either lack good judgment and common sense, or who lack the necessary discretionary powers to exercise their own fair judgment. An independent review by a University Ombuds serves a needed function in such cases. Likewise, the creation and support of an effective Ombuds office by a University draws the attention of the student body and faculty to the University’s concern that its policies and regulations are being fairly administered. As Stuhmcke points out, Universities benefit from having an alternative to more formal, expensive and time consuming methods of conflict resolution. Further, there is most often validation and assurance for Universities found in the Ombuds’ conclusions, as the Supreme Court of Canada noted in Re: British Columbia Development Corporation v. Friedmann

11 et al. where Dickson, J

(as he then was) wrote on behalf of the Court:

…On the other hand, (the Ombudsman) may find the complaint groundless, not a rare occurrence, in which event his impartial and independent report, absolving the public authority, may well serve to enhance the morale and restore the self-confidence of the public employees impugned.12

Often it is the perception of effectiveness of the Ombuds that goes straight to the Office’s credibility in the eyes of the members of the University and the administration. A loss of respect by one side or the other can prevent an Ombuds office from carrying out its designed role. Yet the term “effective” is an evasive one, especially in the Ombudsman’s world where it largely depends on who one asks. Indeed a successful complainant, an exonerated faculty member, a student formerly lost in a bureaucratic maze, or someone who had not

10 Ibid, p. 186. 11 Karl Friedmann was the Ombudsman for British Columbia. 12 Re: British Columbia Development Corporation et al v. Friedmann et al. (1984) 2 S.C.R. 447 at 461.

8

come into contact with the Office but has benefited from its work may all testify to the effectiveness of an Ombuds. Conversely, a dissatisfied complainant, a defensive or blameworthy employee or someone with no knowledge of the office may beg to differ. Regardless of how the office is perceived, readers must be aware that the Ombuds does not ensure administrative perfection in Universities; nor are they perfect themselves. It is vital that the Office not be perceived as a panacea or cure-all, lest its shortcomings be read as disastrous. There are a small number of criteria available for assessing the institutional fortitude of Ombuds offices. I have chosen the American Bar Association (“ABA”) model for its thoroughness and longevity in the field. In 1969 the ABA adopted a resolution calling for state and local Ombuds, and in 1971 resolved that the U.S. federal government should establish offices as well. The subsequent proliferation and evolution (some would say degradation and manipulation) of the concept became a matter of concern to scholars13 and other Ombuds purists, such that in 2001 the ABA’s Board of Governors established more formal Standards for Ombuds offices based on a comprehensive process of consultation with Ombuds and the legal community. Subsequently, the ABA began categorizing Ombuds as “classical” (public sector), “organizational” (public or private which served members and/or employees or contractors of an entity) and “advocate” (protecting vulnerable populations like children and the elderly). According to the ABA, the Standards were:

…developed to provide advice and guidance on the structure and operation of Ombuds offices to the end that Ombuds may better fulfill their functions and so that individuals who avail themselves of their aid may do so with greater confidence in the integrity of the process.

The ABA felt that an Ombuds must operate consistently with the following essential characteristics in order to discharge the duties of the office effectively:

1. independence in structure, form and appearance; 2. impartiality in conducting inquiries and investigations; and,

3. confidentiality.14

13 Notable among them, Dr. Donald Rowat of Carleton University who was widely considered the forefather and authority on the Ombudsman scheme in Canada. 14 American Bar Association. “Special Feature: Ombuds Standards.” Administrative Law Review, (2002) Vol. 54 No. 2 pp. 551-553.

9

The American Bar Association Standards On top of the three essential characteristics, the ABA Standards hold that there are other characteristics the Ombuds office should own. These themes will be explored in more detail in Area 7 of this appraisal. The Standards contain the following sections:

A. Establishment and Operations B. Qualifications C. The Essential Characteristics

(i) Independence in structure, function and appearance (ii) Impartiality in conducting inquiries and investigations (iii) Confidentiality

D. Limitations on the Ombuds’ Authority E. Removal from Office F. Notice G. Classical Ombuds H. Organizational Ombuds I. Advocate Ombuds

As University Ombuds are classified as “organizational”, note that sections “G,” and “I” above do not apply here.

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Appraisal: The Concordia Ombuds Office My overall impression of the Concordia Ombuds Office is that it is functioning well given the workload and expectations placed on the Office and its incumbent. It fulfills the essential characteristics of independence, and impartiality in conducting confidential inquiries and investigations. It adheres closely to the ABA Standards. My sense from the vast majority of contacts made in connection with this appraisal is that the Office is widely respected and trusted, and it is conscious of its neutrality. Its process is credible and its employees, including the Ombuds were described as “solution-oriented, personable, knowledgeable and approachable.” The Office, however, has little time to bask in the sunshine of congratulations as complaints and enquiries in the hundreds continue to rain down on it every year. Further, it has to improve in the key area of Annual Reporting. Currently the Ombuds is fulfilling roles as senior investigator, mediator, promoter, communications director, shuttle diplomat, administrative head of the Office, and president of her national association. Further, she fills in for the Assistant during times of annual leave or other absences, and must respond periodically to access to information requests. In addition, (and by convention) she has provided assistance with cold calls to the Office of Rights and Responsibilities.15 Not having the benefit of a previous mandated appraisal, in my view the timing is right for certain changes and investments in the Office; a “tune-up” as opposed to an “overhaul,” which should improve upon the high level of service it provides to the Members of Concordia, and should keep Concordia at the forefront of University Ombuds offices in Canada. The remainder of this appraisal will focus on the areas of enquiry enumerated on page 4. Recommendations will be included where timely, and are listed specifically on page 29.

Area 1:

Use of Technology and Tools by the Ombuds Office The Ombuds Office has the normal trappings of a modern business Office: desktop computers, telephones, copying, internet and fax capabilities.

15 This relationship is reciprocal and is by no means contentious. Similar clienteles, proximity, professional courtesy and overall concern for clients sometimes requires dealing with cold calls for the other Officer as circumstances demand. This situation has been partially rectified in recent months, with the Rights and Responsibility Officer having a designated stand-in for periods of leave.

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The Ombuds has a personal smart phone that she uses periodically for Office purposes. Such usage is infrequent. The Ombuds has no current interest in a Concordia-issued phone and is satisfied to use her own phone as needed. The Office has no laptop computers, intrusion alarms, audio recording equipment, televisions or other personal electronic devices. There are two points to be made under the heading of technology and tools. (a) Laptop computer: In my view the Ombuds should be issued a laptop computer and a secure USB Flash Drive for use by the Ombuds as required. This will enable the Ombuds to:

(i) Increase productivity by allowing her to perform some Office work while she is not in the Office but elsewhere on campus, or even at home. The Ombuds can use the device as a tool to rectify issues or provide information or referrals “on the fly,” thus reducing the need to address a list of issues on her return to the Office.

(ii) Allow her to perform some Office work while on travel status outside of the

headquarters area, or in transit to or from the headquarters area,

(iii) Increase accessibility by allowing her to access and answer e-mail at her discretion in keeping with confidentiality concerns.

Recommendation #1: The Ombuds Office should be approved for the purchase of one laptop computer and a secure USB Flash Drive to assist operations. (b) Ombuds’ Website: The current Website for the Ombuds Office is insufficient and of little utility to prospective users of the service, other than to provide information on core mandate and how to contact the Office. The Ombuds advises that she is currently working with a designer to improve the website’s capabilities and there is a draft website map in place including a link to the complaint form, a feedback form, and links to other websites of interest. While it is premature to make a formal recommendation, I submit any new website for the Ombuds must be stand-alone in a fashion similar to the Office of Rights and Responsibilities, while making reports and publications16, promotional materials, articles of interest, research and links to other Concordia services available.

16 Annual reports should begin to link as soon as practicable from the existing website. Recommendation #5 addresses this.

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One member of the Advisory Committee noted that Concordia is about to introduce guidelines for websites affiliated with Concordia. These guidelines may impact rapid implementation of the new website. (c) VP’s Website Independence from Concordia’s administrative structures is a bulwark of the Office pursuant to Paragraph 1 of the Terms of Reference. As a cherished institutional goal, independence must not only be exercised in its daily operations, it must be seen to be fostered and promoted by the administration. ABA Standard C(i) applies here (independence in structure, form and appearance). The credibility of Ombuds processes are closely linked to the degree of separation an Ombuds has from the bureaucracy it investigates. Therefore, the appearance of functional control in any form should be eliminated. While not a strict term of reference for this appraisal, I am concerned that how the Ombuds is depicted on the organizational chart of the VP and on the website of the VP may cause certain sections of the Ombuds’ constituency to believe that the Ombuds is overseen by the VP. While those close to the issue know the relationship is one of administrative support and that the VP is not the Director of Investigations (by all accounts the VP genuinely respects and supports the mandate of the Office, and cooperates with it), readers must understand that a segment of the Ombuds constituency is occupied by some who will disagree with the Ombuds’ findings; people who believe in coercion, conspiracy, interference, bribery, obstruction and tampering, and who will question the impartiality of an Office paid for by an institution.17 They may find that the VP’s page and the organizational chart that is accessible through the VP’s page partially supports their view. The site in question is found at http://www.concordia.ca/vpirsg/ and an excerpt is included as Appendix 1 to this appraisal for ease of reference. It lists the various responsibilities of the VP and includes the phrase “responsible for…an independent, neutral and accessible Ombuds function.” However the Terms of Reference at Paragraph 27 indicate the “VP…shall act as the link between the Board and Ombudsperson for administrative purposes.” A minor conflict exists between the website and Paragraph 27. Therefore it would not be difficult to amend this phrase on the VP’s website to read:

“responsible for…acting as the link between the Board and Ombudsperson for administrative purposes.”

17 For example, one commenter in the internet survey opined the Ombuds was “slightly useless and corrupt. Par for the course really.”


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Recommendation #2: That the VP’s webpage http://www.concordia.ca/vpirsg/ be amended to reflect the Terms of Reference so that it indicates the VP is “responsible for…acting as the link between the Board and Ombudsperson for administrative purposes.” I note the organizational chart found off the VP’s webpage, located at http://www.concordia.ca/vpirsg/documents/concordia-vpirsg-organigram.pdf (Appendix 2) places the Ombuds on the same plane as Directors and Associate Vice-Presidents within the VP’s purview. This, in my view, does not fully reflect the independence of the Office from the administrative structure, and the unique role that the Office is intended to fill. The ABA indicates:

Structuring independence for Ombuds who serve inside organizations and classical Ombuds who address issues within a single program or agency require similar care. These elements should be in the charter. The Ombuds position should be explicitly defined and established as a matter of organizational policy, authorized at the highest levels of the organization;18 the Ombuds should have access to the chief executive officer, senior officers, and the oversight body or board of directors of the organization… … The Ombuds’ structural independence is the foundation upon which the Ombuds’ impartiality is built. If the Ombuds is independent from line management and does not have administrative or other obligations or functions, the Ombuds can act in an impartial manner.19

Therefore I recommend that the Ombuds Office be reflected alone on a slightly higher plane on the organizational chart, joining the VP’s downline via a broken line similar to the one in place, and remaining joined to the Board of Governors. This idea is not avant garde, with similar organizational charts already in place at l'Université de Montréal20, l'École Polytechnique,21 l’Université du Québec à Montréal,22 and the University of Ottawa.23 18 The ABA recommends that the Ombuds be given “sufficient stature in the organization to be taken seriously by senior officials (and) placement in an organization at the highest possible level and at least above the heads of units likely to generate the most complaints.” American Bar Association, supra, p. 557. 19 American Bar Association, supra, p. 558. 20 See http://www.umontreal.ca/direction/ 21 See http://www.polymtl.ca/rensgen/doc/organi_2011-11-01.pdf 22 See http://www.uqam.ca/services/organigrammes/organigramme_services.php 23 See http://web5.uottawa.ca/admingov/orgchart_5.html

http://www.concordia.ca/vpirsg/http://www.concordia.ca/vpirsg/documents/concordia-vpirsg-organigram.pdfhttp://www.umontreal.ca/direction/http://www.polymtl.ca/rensgen/doc/organi_2011-11-01.pdfhttp://www.uqam.ca/services/organigrammes/organigramme_services.phphttp://web5.uottawa.ca/admingov/orgchart_5.html

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Recommendation #3: That the VP’s organizational chart be amended to place the Ombuds alone on a slightly higher plane, joined via broken line to the VP’s downline, and remaining joined to the Board of Governors.

Area 2:

Data Management24 (a) Physical and Electronic Data Management: The Ombuds Office collects and exchanges data of a heightened personal nature, after receiving the necessary consent of the complainant. While no specific complaint files were reviewed in this appraisal, it is reasonable to assume that the Ombuds may collect,25 analyze, exchange and retain information including, but not limited to:

(i) names, addresses and phone numbers (ii) national or ethnic origin (iii) dates of birth (iv) student numbers (v) marital status (vi) health care status or histories (vii) educational status or histories (viii) financial status or histories (ix) criminal status or histories (x) opinions about a complainant (xi) the complainant’s own opinions

Complainants, respondents and witnesses participating in investigations and inquiries need to be comfortable that information they provide in trust will not be mistakenly dispensed or illegally accessed. A single breach of confidentiality can severely impact the Office’s ability to ensure respondents and witnesses that the information it receives stays within the confines of the Office (to the extent practical to adequately investigate a matter). After a breach, the Ombuds would have an exceedingly difficult time assuring that both full documentary disclosure and candid witness evidence has been given. Its investigative powers would thus be fettered. In a phrase, this requires vigilance. In my view the data currently held by the Office is protected by reasonable security measures including physical access controls such as a locked exterior door, key-locked individual office doors and locked office cabinets. Care is taken to keep personal information from unnecessarily accumulating on desks.

24 Note this review included a site visit only to the main office located in the GM building on De Maisonneuve Boulevard West. 25 Note in this context “to collect” may not be “to solicit”. Ombuds frequently come into possession of information that is volunteered or not otherwise requested.

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There is no locked storage room in the temporary office space the Ombuds currently occupies. Physical access controls will be expanded upon later in this appraisal. Electronic access controls also exist, including user identification and authorization for electronic access to information held by the Office. Firewall and anti-virus measures are in place and reportedly up to date. The Office employs hard drive(s) that cannot be accessed by any computer in the Concordia network. A retention schedule is in place and there is no export of physical files to an off-site archive. I note the Office also undertakes extraordinary measures to ensure the availability of the information it collects for future use in the event of catastrophic data loss, including a backup and storage procedure which involves backing data up onto compact disk and storing the data in a safe deposit box in a local chartered bank. The amount of personal information included in e-mail is minimized wherever possible, including substitution of initials for names, or simply referring to the subject as “student.” Nevertheless, this appraisal has limitations with respect to privacy and/or data security. Opinions are based on conventional knowledge and practices observed in other parliamentary Ombudsman offices. I submit that a more technical opinion is required when the Office completes its move from the temporary space it currently occupies. Recommendation #4: Upon assuming new office space (forecasted for 2013), the Ombuds Office should commission, with Concordia’s support, a review of protection of privacy and physical and electronic storage methodologies by a privacy compliance specialist.

(b) Other Data Management Practices:

Software: The current software package employed by the Office, known as “FileMaker Pro,” is popular and reportedly easy to use. This program “clears the bar” but may not be the optimal case tracking program for an office of this nature. It allows for client information entry, it categorizes complaints and allows the viewer to ascertain if the complainant has been to the Office before, who they have spoken with and the nature of the complaint. FileMaker Pro gives the Office statistical capability, tracks dates of opening and closing, allows case notes to be entered and allows for the entry of recommendations.

All complaints, findings and recommendations are noted in FileMaker Pro in keeping with the suitable record keeping requirement of Paragraph 25 of the Terms of Reference.

The Assistant Ombuds is undertaking a review of software packages and licensing options employed in other jurisdictions to look for improvements or replacement options and therefore, specific recommendations are premature. I would encourage Concordia to support the Office in future upgrades or acquisitions upon request.

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Area 3:

Promotional Materials Promotion of an Ombuds Office is a sum of the incumbent’s philosophy and the Office’s budget. Ombudsman offices should consistently work to maintain their visibility and appeal to the publics they serve, while not saturating constituencies with promotional materials or advertising that could lead to a rubble of complaints and unsustainable demands for service that result in backlogs. The Ombuds Office at Concordia has found a balance. Its primary method of promotion is to widely distribute a pamphlet entitled “Up Against A Wall” (see Appendix 1 of the Ombuds’ 2009/2010 Annual Report) to inform students of the role and mandate of the Office, and how to make contact with the Office. In addition, the Office is included in undergraduate and graduate handbooks and places informative advertisements in the Concordia student program magazine “The Bridge.” I note that in September 2011 the Ombuds was featured on the NOW News and Events web page in an article entitled “Ombuds Office Welcomes Students.” The Ombuds is currently working with Concordia to have advertisement slides placed on digital screens in high traffic areas on both campuses of Concordia. The Office does not have a social media presence. There are a number of factors to take into consideration before a complaints office establishes a social media presence26 and the Office should only appear on social media at the Ombuds’ sole discretion. I note that the Ombuds undertakes presentations and workshops on behalf of the Office during the academic year to promote the Office and its work. There were nine in total for 2009/2010. Presentations and outreach to targeted audiences form a regular part of the duties of most Ombuds in Canada. I conclude the current steps being taken by the Office are reasonable, sustainable and low-cost. They can be expanded or contracted at the Ombuds’ discretion. In tandem with an upgraded website (and perhaps a social media presence), the current modalities should continue to serve the Office over the next five years. They actively promote the Terms of Reference and the services offered by the Office in accordance with Paragraph 6(a) of the Terms.

26 These include but are not limited to the much wider profile, the time required to moderate, controlling spam, monitoring site activity and dealing with inappropriate postings.

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Area 4

Publications and Reports (a) Access to Reports: I note that it is possible for a member of Concordia or the wider public to access the Annual Report of the Ombuds through a general search of the Concordia website. However, the Ombuds’ own website, even in its current format, should link to previous reports as well. This limits the Office’s ability to provide quick disclosure of its past cases, its successes and challenges, complaint volumes, statistics and recommendations to those who wish to learn more about the Office. Members of Concordia would be better served if this information was available at the most logical source. Recommendation #5: The Ombuds Office website should immediately have links placed to its previous Annual Report(s). (b) 2010 – 2011 Annual Report: Contrary to Paragraph 2927 of the Terms of Reference, the Ombuds did not submit a 2010-2011 Annual Report to the Board of Governors by November 1, 2011. This is of concern to the administration. An extension has been granted by the VP for the Ombuds to complete this document and the Ombuds advises the document is in draft form on her system. The Ombuds attributes the delay to her regular workload, compounded by the Fall 2011 preparation of a self-appraisal and an addendum which was required for the committee’s appraisal of the Office. Reporting results is a critical function of the Office over and above its main stock-in-trade (complaint handling). The current incumbent is seasoned and well aware of her duty in this regard. I was presented with evidence that only two reports have been filed in ten years of service. Annual Reports are the first stop for anyone who wishes to learn about the Office in-depth, notably the Committee and by extension, the Board of Governors. Full compliance with this Term is essential moving forward and any delays beyond the current extension should be a matter of concern. I submit that a key consideration in the 2016 reappointment process should be whether this record has been corrected to 100%. Once the Annual Report is filed, and pursuant to Paragraph 29 of the Terms of Reference, it is then the responsibility of the VP to follow up on the recommendations contained in the annual report of the Ombuds Office by ensuring “that the appropriate University authorities consider and respond to the recommendations contained in the report.” In my view, the response to recommendations should be communicated in writing to the Ombuds by the VP or from the respondent authority, copied to the VP. This puts the response on the record, and keeps the VP abreast of how Concordia responds to the recommendations of the Ombuds.

27 Paragraph 6(h) also anticipates the Ombuds will notify Concordia of unfair policies, rules or procedures and offer advice/suggest changes. The Annual Report would normally be the vehicle for doing so.

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Area 5 Complaint Treatment Process and Delays (a) Complaint Treatment Process In 2009/2010 the Office received an average of 44 matters per month. Complaints that enter the Concordia Office follow an Ombuds flow chart28 which was adapted from the Saskatchewan Ombudsman model. The flow chart is in keeping with pan-Canadian Ombudsman flow chart models and will not be embellished. When a complaint arrives at the Office, any combination of the three following people will handle it:

(i) The Department Assistant: The Department Assistant (“DA”) is a shared position designed to split its time evenly between the Ombuds Office and the Office of Rights and Responsibilities.

This position holds nine responsibilities for each Office.29 Chief among these (from a primary line of business perspective) are greeting clientele, responding to inquiries, performance of initial screening to determine the nature and urgency of a case, and processing of complaints. There are also secretarial and sundry administrative duties. As the first point of contact, both in person or by telephone, the DA plays a pivotal role in the complaints process as frontline intake. The DA is given latitude to direct traffic entering the office and may be able to re-direct non-jurisdictional inquiries, answer general questions about the Office(s) and provide advice in situations the DA is comfortable with. The DA “processes complaints” to the extent that the DA can deal with low-level enquiries, and can monitor and maintain complaints in the database.

(ii) The Assistant Ombuds

The Assistant Ombuds position is an investigation/mediation position at its core, with the Assistant Ombuds providing strategic advice and opinions to the Ombuds as necessary. Currently, the Assistant Ombuds is handling most all undergraduate complaints30 that cannot be handled by the DA.31 The Assistant

28 See Annex II to the 2011 Ombudsperson’s Appraisal of the Ombuds Office 29 Source: Ombuds Office and Office of Rights and Responsibilities Department Assistant posting (P5707) requested from the Ombuds. 30 Excluding complaints which require service in the French language – these are referred to the Ombuds. 31 There were 270 undergraduate complaints in 2009/2010.

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Ombuds liaises extensively with students, faculty members, departments, schools, student groups, administrators and numerous other individuals at Concordia. Due to the small size of the Office, prioritization of files and the intra-office provision of advice are not problematic. The Assistant Ombuds is in regular contact with the DA and the Ombuds and there is no requirement to wait for the weekly staff meeting to raise issues of concern.

(iii) The Ombuds

An appointee of the Board of Governors, the Ombuds occupies the senior position in the Office and handles primarily faculty and graduate student complaints, with a mix of francophone undergraduate files as well. The Ombuds provides ongoing advice on complaint handling to the DA and the Assistant Ombuds. Regardless of complaint origin, I would consider the most high profile, complex and conflict-ridden cases to be the regular domain of the Ombuds.

There are no significant concerns identified with the current complaint handling process. Human resource allocations will be discussed later in this appraisal. I note that the Ombuds and the Assistant Ombuds have worked together for over ten years and 5000 cases and seem to have a good rapport. Interviewees have indicated that both are well placed within Concordia to know where possible remedies or settlement opportunities lie. There are two recommendations to be made under this heading. In my view, two amendments to the 2011-2012 Intake Form may help with tracking and assessing complaints.

1. For purposes of compiling statistics, the complainant should be asked specifically which component of the University he or she is complaining about.

2. The Office should ask how the complaint can be settled. This will help with

the prioritization of files, and will indicate what the complainant expects so that the expectations can be properly managed from the outset.

Recommendation #6: The Ombuds Office complaint form should be amended to ask complainants which component of Concordia the person is complaining about. Recommendation #7: The Ombuds Office complaint form should be amended to ask complainants how the complaint can be settled.

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(b) Delays Not unlike those of its classical and advocate counterparts, the complaint treatment process in the “organizational” University context traps certain complaints for longer periods of time than others. Delays can be the result of the vagaries of:

(i) difficult or disinterested complainants; (ii) difficult or hard to locate witnesses;

(iii) document production;

(iv) the appearance of new evidence; (iv) a material change in the complaint (or the addition of another complaint); (v) intransigent respondents;

(vi) leave or illnesses; (vii) competing priorities for the Ombuds; and,

(ix) the ebb and flow of students and faculty to and from campus over the

course of the University calendar. I place considerable weight on the fact that there have been only three formal complaints registered with the VP against the Ombuds Office since 2000, while the Office has considered over 5000 matters. While two of the complaints32 were registered in 2011 (the third33 was undated) this is still a negative feedback rate of less than half of a percentage point. There were three references in the online survey to delay out of twelve responses, however the Office was described by most interviewees as being efficient in its complaint handling. I would not recommend any attempt at setting arbitrary timeframes for completion for Ombuds interventions in future reviews of the Terms of Reference. Delay is not endemic in the Office. I believe the Concordia Ombuds should naturally draw inspiration from Paragraph 7 of the Terms of Reference which states that the Ombuds “shall be concerned…specifically that decisions affecting Members are made with reasonable promptness.” Across Canada, Ombudsman hector respondents in investigations on the issue of delay on a daily basis, and they regularly conduct investigations and inquiries based on complaints

32 From students. 33 From a Department.

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about administrative delay. Ombuds offices that have backlogs or problems with delay find themselves at risk of rapidly losing their persuasiveness on the subject.

Area 6

Office Human Resources If an institution is serious about its Ombuds service, it must properly staff and adequately fund it. The Ombuds is one of 2.5 positions in the Office. As indicated previously the DA position is a shared resource. The current DA incumbent is new to the position but is described as highly capable and adjusting well to her new role. With time and consistency at the position, together with investments in developing the incumbent in complaint handling processes and other professional development opportunities, the DA can become an increasingly valuable frontline resource for both offices and I encourage the offices to make these investments in the DA. The Assistant Ombuds position is well entrenched and serves a second in command function. As a full time employee, the current incumbent represents the “corporate memory” of the Office. The Assistant Ombuds expressed loyalty to the Office and genuine concern for its image. She does not hesitate to seek direction from the Ombuds in any matter that could potentially reflect badly on the Office. While not the subject of this review, parties interviewed in connection with this appraisal note that the Assistant Ombuds plays a valuable role in the investigation and resolution of undergraduate complaints. She was described by three interviewees as “calm and reasonable,” “excellent” and “very fair.” A question posed was whether the Ombuds Office requires additional human resource capabilities. On reflection I am inclined to say that the Office would benefit from the services of a contractual34 bilingual Investigator in a salary and position below that of the Assistant Ombuds, and higher than that of the DA, for the following reasons:

1. To assist and help reduce the investigative workload of the Ombuds who is reported to be frequently working into the evening,35 and allow the Ombuds to focus more on high profile cases, raising awareness of the Office and the Terms of Reference, outreach to select demographics, speaking engagements,

34 The contract should be a minimum of two years to attract the appropriate talent and allow an on-the-job training period. The position can be reclassified as permanent at a later date, or eliminated if the position gives the Office excess capacity or is otherwise found to be outside of the needs of the Office. Also note that this full time position, if approved, would have to be factored in to permanent office space requirements in 2012/2013 after the re-cladding project. 35 When questioned, this was confirmed by the Ombuds and further verified by a source outside of the Ombuds Office.

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report writing and administrative compliance issues like annual reporting, vetting access to information requests and the like;

2. To provide support to the Assistant Ombuds in undergraduate complaints and

inquiries;

3. To increase the research capacity of the Office;

4. To provide increased capacity for systemic work;

5. To have another trained staff person available during periods of illness or leave;

6. As part of a succession plan to have a trained staff person available in the

eventuality of the Assistant Ombuds’ retirement;

7. To alleviate backlog and perform other duties which would generally assist the Office in moving from a borderline reactive position to a proactive position.

Recommendation #8: The Ombuds Office should be granted a contractual Investigator position with suitable compensation, below that of the Assistant Ombuds. The successful candidate should be bilingual and hold at a minimum, a Bachelor’s degree.

Area 7

The Terms of Reference Last updated in June 2010, the Terms of Reference establish the Office and set out the scope and duties of the Ombuds. In keeping with ABA Standard “A” for Establishment and Operations, the Office, via the Terms of Reference:

(i) is created by a publicly available written policy;

(ii) is empowered to receive complaints and enquiries confidentially regarding alleged acts, omissions, improprieties and broader systemic problems; (Paragraph 3);

(iii) has a defined jurisdiction (Paragraphs 2, 4, 5, and 16);

(iv) is free to determine whether action is required on a particular complaint or

question, or whether it is without merit (Paragraphs 6 [d][e], and 14);

(v) operates by fair procedures to aid in the just resolution of the matter (Paragraphs 8, 11);

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(vi) has access to all information relevant to a complaint or a question so that the

review is fair and credible, and the charter authorizes access to all relevant information (Paragraph 9);

(vii) provides protection from retaliation (Paragraph 24);

(viii) has permission to make a formal or informal report of results (Paragraphs 12,

13);

(ix) can make periodic reports summarizing the Ombuds’ findings and activities including statistical information (Paragraph 29);

(x) has the flexibility to use a variety of dispute resolution techniques (Paragraph

6(c);

(xi) can make recommendations for the resolution of a complaint or a systemic problem to those persons who have authority to act on them (Paragraphs 6[g], 13);

(xii) educates others (Paragraph 6 [a][b])

With respect to ABA Standard “B” for qualifications, please refer to page 6 of the companion document “An Appraisal of the Incumbent Ombuds.” Note this Standard is met. ABA Standard “C” refers to the three essential characteristics of an Ombuds. The Terms of Reference are largely compliant. 1. Independence in Structure, Form and Appearance. The first of these is independence in structure, form and appearance. This aspect is partially discussed on pages 13-15 of this appraisal. With respect to independence in structure, Paragraph 1 of the Terms of Reference is clear: “The Ombuds Office shall be independent of all existing administrative structures of the University.” In addition the Office exhibits the following characteristics of structural independence via the Terms:

(a) It is created through a formal written policy; (b) it has a direct reporting relationship with the official governing body

(Paragraph 29);

(c) designation as a neutral who is unaligned and objective (Paragraphs 3 and 8);

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(d) it possesses a broadly defined jurisdiction not limited to one part of the entity or one subject matter (Paragraphs 2, 4, 5 and 16); and,

(e) there is no assignment of duties that conflict with the Ombuds’ role;

The Terms of Reference do not address the following areas of independence (which, with the exception of [d] below are uncommon in Canada):

(a) removal of the Ombuds free of influence from potential subjects of a complaint or inquiry;

(b) access to and resources for independent legal advice and counsel;

(c) prohibition of disciplinary actions against the Ombuds for performing the

duties of the office; (d) removal only for cause36;

(e) provision of an employment contract that the Ombuds will receive a

significant severance provision if terminated without good cause. 2. Impartiality in Conducting Inquiries and Investigations According to the ABA:

Acting in an impartial manner, as a threshold matter, means that the Ombuds is free from initial bias and conflicts of interest in conducting inquiries and investigations. Acting in an impartial manner also requires that the Ombuds be authorized to gather facts from relevant sources and apply relevant policies, guidelines and laws, considering the rights and interests of all affected parties within the jurisdiction, to identify appropriate actions to address or resolve the issue.37

Concordia’s Terms of Reference promote impartiality at Paragraphs 3 and 8, prohibit conflict of interest at Paragraph 18, authorize collection of evidence at Paragraph 9, preserve the rights and interests of all affected parties at Paragraphs 7, 8 and 11 and authorize the Ombuds to identify and undertake actions to address or resolve issues at Paragraphs 6(h), 12 and 13. In addition, the Ombuds can withdraw from or decline a case (Paragraph 15)

36 Recommendation to follow. 37 American Bar Association, supra, p. 558.

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3. Confidentiality The degree of secrecy and confidentiality an Ombuds possesses is an integral component of measuring an Ombuds office. It follows that in many cases the Ombuds is collecting and analyzing proprietary Concordia information, the opinions of Members and witnesses, and documents that contain heightened personal information about individuals connected to a complaint. Crucial to its ability to access information is the cloak of confidentiality, which preserves the integrity of the investigative processes used by the Ombuds. It provides a measure of comfort for complainants, respondents and witnesses participating in investigations, which should logically translate into candid opinion evidence and full documentary disclosure. Confidentiality and the need to safeguard sensitive information were partially addressed in the Data Management section of this paper. The Terms of Reference reflect Concordia’s concern for this issue in Paragraphs 19 through 23 and are suitable when held against other Terms of Reference from Canadian Universities38, I believe these provisions are adequate however I note that Ryerson extends further protection to its Ombuds by protecting the Ombuds from being compelled to testify before a University tribunal regarding information obtained in the course of duty and taking steps to protect the Ombuds from being subpoenaed by others “both inside and outside the University.”39 Recommendation #9: Future reviews of the Terms of Reference should consider a clause dedicated to protecting the Ombuds from appearing as a witness in Concordia tribunals, and endeavouring to protect the Ombuds from subpoena attempts from inside and outside of Concordia. ABA Standard “D” discusses limitations on the Ombuds’ authority and the need for parameters including recommendation versus order power, fair and flexible procedures, and not serving as an appellate forum for discipline or collective bargaining. Recommendations are referenced in Paragraphs 5, 12, 13, 22 and 29 of the Terms of Reference. Fair and flexible procedures are alluded to in Paragraph 6(c) which references the Ombuds duty to “assist Members to resolve complaints informally and quickly,” and in Paragraph 11 where the Ombuds “shall make every effort to consult the relevant parties and give such parties the opportunity to reply…”. Finally, Paragraph 4 removes the Ombuds from application or interpretation of collective agreement issues and fair representation by unions, while Paragraph 16 prohibits matters that are, or may be before a court of law or administrative tribunal. 38 Concordia’s Terms of Reference for the Ombuds Office were reviewed against publicly accessible Terms at University of Toronto, Wilfrid Laurier University, Bishop’s University, Dalhousie University, McMaster University, Ryerson University, the University of Ottawa and the University of Western Ontario. 39 Source: Ryerson University Terms of Reference for the Office of the Ombudsperson. http://www.ryerson.ca/ombuds/mainsubpages/termsreference.html

http://www.ryerson.ca/ombuds/mainsubpages/termsreference.html

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ABA Standard “E” refers to terms of removal from office and recommends having disciplinary or removal provisions for good cause by way of a fair procedure. Concordia has no such provisions. This may be of interest for future reviews of the Terms of Reference. Provisions exist in classical Ombudsman legislation and have been identified in the Terms of Reference for Bishop’s and McMaster. Recommendation #10: Future reviews of the Terms of Reference should include consideration of terms of removal with a “removal for cause” provision in the Appointment section of the Terms. ABA Standard “F” for “Notice.” This absolves the Ombuds from accepting legal notification of an issue on behalf of Concordia. This is anticipated by Paragraph 17 which states that “under no circumstances shall the mere fact of bringing a complaint to the attention of the Ombudsperson constitute a formal notification, for legal purposes, to the University.” Concordia adheres to the final ABA Standard: “H”40 which applies generally to “Organizational Ombuds” and states:

An organizational Ombuds ordinarily addresses problems presented by members, employees or contractors of an entity concerning its actions or policies. An organizational Ombuds may undertake inquiries for modifications in policies or procedures.41

My review of the Terms of Reference shows that Concordia’s Terms are abreast of the eight other Universities considered. The recommendations contained in this section are by no means urgent and are merely designed to supplement future deliberations of the Board of Governors.

Varia 1. Office Space I note that the Ombuds Office has no locked storage room. This is an important physical access control that should not be overlooked when considering new office space for the Office. I also note that the current office space is sorely inadequate from a personal security perspective. University Ombuds offices tend to attract individuals who are dissatisfied,

40 Note that Standard “G” is applicable only to classical Ombuds. 41 American Bar Association, supra, p. 563.

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angry or frustrated with the University. These feelings can be compounded exponentially if the findings of the Ombuds support the University’s position. Procedural fairness often dictates that the Ombuds explain the university’s position, or the Ombuds’ position to refuse to investigate a matter. This is often done in person. Employees of the Concordia Ombuds Office, and the Rights and Responsibilities Officer have no alternative to meeting in their personal office space, no neutral area with secondary exit(s) through which to escape persons who may become violent or aggressive. The current setup in the temporary office space is not recommended from an occupational health and safety perspective, nor from a protection of privacy perspective given that clients enter the personal workspaces of the Ombuds and the Assistant Ombuds to be interviewed. A security audit has been performed recently on the Office. I would suggest that Concordia review the results of the audit with a view to immediately improving the security situation in the Ombuds Office and the Office of Rights and Responsibilities, and taking the above considerations into account when finding or retrofitting permanent office space in 2013. Recommendation #11: That the recommendations of the security audit recently performed on the Ombuds Office be given priority consideration by Concordia.

What I Heard: Verbatim Comments About the Ombuds Office “I’m confident my referrals are handled properly.” “Our interactions are relaxed and there is a high level of trust and respect. There are no issues to speak of.” “There’s no disrespect or butting heads.” “Didn’t show much compassion.” “My experience was not very good. My expectation of shelter wasn’t there.” “(The Office is) approachable, honest, trustworthy, personable and are good advocates for the students.” “(Assistant Ombuds) is excellent.” “They didn’t do their job.” “They did a great job.” “Solution-oriented office. Not biased toward students.”

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Recommendations Recommendation #1: The Ombuds Office should be approved for the purchase of one laptop computer and a secure USB Flash Drive to assist operations. Recommendation #2: That the VP’s webpage http://www.concordia.ca/vpirsg/ be amended to reflect the Terms of Reference so that it indicates the VP is “responsible for…acting as the link between the Board and Ombudsperson for administrative purposes.” Recommendation #3: That the VP’s organizational chart be amended to place the Ombuds alone on a slightly higher plane, joined via broken line to the VP’s downline, and remaining joined to the Board of Governors. Recommendation #4: Upon assuming new office space (forecasted for 2013), the Ombuds Office should commission, with Concordia’s support, a review of protection of privacy and physical and electronic storage methodologies by a specialist in this area. Recommendation #5: The Ombuds Office website should have links placed to its previous Annual Reports. Recommendation #6: The Ombuds Office complaint form should be amended to ask complainants which component of Concordia the person is complaining about. Recommendation #7: The Ombuds Office complaint form should be amended to ask complainants how the complaint can be settled. Recommendation #8: The Ombuds Office should be granted a contractual Investigator position with suitable compensation, below that of the Assistant Ombuds. The successful candidate should be bilingual and hold at a minimum, a Bachelor’s degree. Recommendation #9: Future reviews of the Terms of Reference should consider a clause dedicated to protecting the Ombuds from appearing as a witness in Concordia tribunals, and endeavouring to protect the Ombuds from subpoena attempts from inside and outside of Concordia. Recommendation #10: Future reviews of the Terms of Reference should include consideration of Terms of Removal with a “removal for cause” provision in the Appointment section of the Terms. Recommendation #11: That the recommendations of the security audit recently performed on the Ombuds Office be given priority consideration by Concordia.


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BIBLIOGRAPHY

American Bar Association (2002) “Special Feature: Ombuds Standards.”Administrative Law Review 54:2 pp. 535-564.

Association of Canadian College and University Ombudspersons. http://www.uwo.ca/ombuds/accuo_aoucc/english/ Accessed 16 December 2011.

Glickman, Art. (1969) “Campus Ombudsmen helps Students Fight Against Bureaucracy.” The Wall Street Journal, November 11, 1969.

McKee, Christine and Suzanne Belson (1990). “The Ombudsman in Canadian Universities: And Justice For All.” Studies in Higher Education, 15:2, 197-206. Stuhmcke, Anita (2001). “Grievance Handling in Australian Universities: the case of the university ombudsman and the dean of students.” Journal of Higher Education Policy and Management 23:2, pp. 181-189.

http://www.uwo.ca/ombuds/accuo_aoucc/english/

Decision of the Board of Governors, Special Closed SessionDecision of the Board of GovernorsDecision of the Board of GovernorsDecision of the Board of GovernorsDecision of the Board of GovernorsDecision of the Board of GovernorsDecision of the Board of GovernorsDecision of the Board of GovernorsDecision of the Board of Governors

Documents

Office of the Vice-President, Institutional Relations and Secretary …€¦ · Mr. Mohammad Reza Karim Hadisi, representing graduate students . Ms. Linda Hull, Manager, Course Registration,